Canadian justice, in an Indigenous contextStanley murder trial the latest to test First Nations peoples' faith in the country's courts

By JOE FRIESEN, SEAN FINE

Saturday, February 17, 2018 Page A4

Before people took to the streets in protest, before the Prime Minister met with Colten Boushie's family, the Battleford courtroom where the trial of Gerald Stanley concluded last week was deathly quiet.

The jury foreman who said "not guilty" spoke so softly that for a moment the silence held, as the members of Mr. Boushie's family struggled to grasp what they heard. The first reply from the gallery - a sharp "What?" - cut through the confusion with loud, uncomprehending reproach.

A sobbing aunt, shouting through her tears at a fleeing judge and jury, captured in a moment of raw emotion what many were feeling: "The system is cruel. You don't even care about First Nations."

Mr. Boushie's family had long prepared for an acquittal. They predicted it several times in interviews. At the preliminary inquiry, Alvin Baptiste, Mr.

Boushie's uncle, said the trial would test First Nations peoples' faith in the justice system.

But he could not have predicted how widely the verdict would resonate. First Nations people across the country, some carrying signs that proclaimed a lack of faith in the justice system, rallied under the banner of "Justice for Colten." In so doing, they shed light on the cultural circumstances that fed the widespread anger.

In August, 2016, Mr. Boushie, 22, was fatally shot at close range after his friends drove onto Mr.

Stanley's property and tried to start his ATV. Mr. Stanley, a 56year-old white farmer, acknowledged holding the gun that killed Mr. Boushie, but testified that he believed it was disabled and "just went off." From the beginning, when Saskatchewan's Indigenous leaders attacked the RCMP for issuing a press release that suggested the shooting was justified, the case inflamed racial tensions.

Mr. Stanley's lawyer, who has not spoken publicly since the trial, said before proceedings began that Mr. Boushie's death was a tragedy, but had nothing to do with race. Last Friday, Mr.

Stanley was acquitted of seconddegree murder and the lesser offence of manslaughter.

The killing and verdict made clear that a deep and enduring racial divide exists in Saskatchewan, largely visible in social media chatter. Politicians and police have called on the public to be calm and consider their words, issuing reminders that hate speech is a crime.

Two weeks before the trial began, Mr. Boushie's mother, Debbie Baptiste, said she worried that First Nations people would be excluded from the jury. That is exactly what happened, as Mr.

Stanley's lawyers used peremptory challenges, which do not have to be explained or justified, to reject potential jurors who appeared to be Indigenous. It was perfectly legal, but left many outraged. This week, Prime Minister Justin Trudeau said he would bring forward legislation to change how juries are selected.

Mr. Boushie's family members are pleased that in just one week, they have secured a promise of reform to one aspect of the justice system. But they brought a long list of issues to Ottawa. For example, they felt police treated the Indigenous witnesses like suspects, which may have contributed to the changing stories that undermined their testimony. RCMP surrounded and searched Ms. Baptiste's home as she was notified of her son's death, which she called callous.

The force cleared itself of wrongdoing, saying it was a unique and volatile situation, but that finding is being reviewed by the Civilian Review and Complaints Commission.

The family found that the federal Victims Bill of Rights did not give them the voice they expected to have in the court process.

The family's lawyers, Chris Murphy and Eleanore Sunchild, said they received little information from the Crown. The Saskatchewan Ministry of Justice declined to comment because it has not yet determined whether the case will be appealed.

Also raised in Ottawa this week was an issue Mr. Murphy described as a systemic problem: Many Indigenous people accused of crimes plead guilty and accumulate convictions who could be successfully defended if Legal Aid received more government financing.

"There is a meat grinder that catches many Indigenous people and before you know it, you're on bail conditions that shouldn't have been imposed in the first place, you're pleading guilty to charges that could have been challenged in court if you had proper representation," Mr. Murphy said. "It's a cycle that keeps on happening."

In 2015-16, 76 per cent of people admitted to provincial jails in Saskatchewan were Indigenous, the highest rate in the country, according to Statistics Canada.

First Nations people have interpretted the killing of Mr.

Boushie in a specific historical context: The hanging of eight First Nations men at Fort Battleford in 1885, the shooting of trapper Leo Lachance by a white supremacist named Carney Nerland in Prince Albert in 1991, the slaying of Pamela George in 1995 and the freezing death of Neil Stonechild in 1990 were all often mentioned by family members.

"There's one justice for white people and one justice for First Nations people," Mr. Baptiste said. "They told me to have faith in their system. Now I feel like they stabbed me in the back. I have lost faith."

THE SENTENCING PROBLEM If the mistrust has a long history, it is still viscerally felt. Three years ago, the Truth and Reconciliation Commission, established with a mandate to repair the harm done by the residential schools, issued 94 calls to action.

Eighteen involved the justice system (including prisons). The disproportionate number of Indigenous people in custody - 27 per cent of federal prisoners, although the Indigenous make up just 5 per cent of the population - figured prominently.

The commission wanted Ottawa and the provinces to commit to fixing that over the next decade and to report annually on their progress.

It called for stable funding to create community-based sanctions as "realistic alternatives to imprisonment" for aboriginal offenders. It called for legislation to allow trial judges to depart from mandatory minimum sentences. It called for aboriginalspecific victim services, and recognition and implementation of aboriginal justice systems.

Actions from the Liberals thus far? "None identified," according to the website of a federally funded centre tracking the 94 calls.

In 1996, the federal Liberals created a sentencing law that gives special consideration to aboriginal offenders. It says jail is a last resort for all Canadians - "with particular attention to the circumstances of Aboriginal offenders." At that time, Indigenous people made up about 12 per cent of federal prisoners and 3 per cent of the population.

"Parliament said very clearly that over-representation of aboriginal peoples in jail is a serious problem in this country," Doug White, a lawyer who cochairs the British Columbia Aboriginal Justice Council, said in an interview.

In 1999, the Supreme Court gave its first interpretation of the law in a case called R v Gladue. A 19-year-old Indigenous woman, Jamie Gladue, pleaded guilty to manslaughter for stabbing her husband, Reuben Beaver, also Indigenous, to death because she believed he was cheating on her.

A trial judge sentenced her to three years in jail. She appealed the sentence, saying the judge had not accounted for her aboriginal background.

The Supreme Court said a whole new way of looking at the sentencing of Indigenous peoples was needed, because their circumstances are unique. (The federal justice department argued that the new sentencing law merely codified existing law.) Judges, it said, need to consider what supports and programs are available locally for Indigenous offenders as alternatives to custody. But it said that, in more serious offences, custody might still be appropriate. It upheld the three-year sentence.

What followed was the creation of "Gladue reports" - individualized histories of offenders, their families and communities, to help judges craft appropriate sentences. Some jurisdictions, such as Toronto, have courtrooms known as "Gladue courts."

All courts, though, are expected to function as Gladue courts.

Even so, the proportion of Indigenous offenders in provincial and federal custody has risen.

Much of the country has few resources to prepare Gladue reports and most Indigenous offenders do without, Mr. White said.

"What is missing is any kind of a coherent national strategy to implement Gladue in a systemic way," Mr. White said.

But the mistrust of the justice system is not the whole story. Mr.

White is a believer in the power of law to help shape the political agenda. He became a lawyer "to be productive for my people."

Indigenous peoples have used the courts to create social, economic and political change.

When residential-school survivors wanted to fight the system, they went to court. Their classaction and individual lawsuits begat, in 2007, a court-supervised settlement with the federal government in which they received billions of dollars in compensation and an apology.

The settlement also begat the Truth and Reconciliation Commission. Part of its mandate was to educate Canadians about the residential schools. Even the children of survivors learned something.

When Mr. White was growing up in Nanaimo, B.C., his mother, Joyce White, didn't speak much about the residential school she attended, Port Alberni. One of the few things she told him was that the children were so hungry they created a black-market trade in orange peels.

It emerged at the commission that medical experiments had been conducted at the school for 10 years to measure the effect of a lack of nutrients on children's well-being.

"Having learned that fact I didn't know before certainly does not get me in the mood for reconciliation," Mr. White said.

"This is the context in which the Gerald Stanley verdict plays out," he said. "It's the reason it's such an alarming outcome. What the verdict amounts to is confirmation that the Canadian criminal justice system does not provide justice for aboriginal people."

Associated Graphic

A protester cries during a Feb. 10 rally in Edmonton, in response to Gerald Stanley's acquittal in the shooting death of Colten Boushie.